South Africa: The Protection Of Personal Information Bill: Showing Me, Showing You

There has been much in the media of late concerning the
seditiously entitled "Secrecy Act" (more properly known
as the Protection of State Information Act) and the impact that
this legislation will have on the availability of certain
information currently in the hands of Government. A sister piece of
legislation is the Protection of Personal Information Bill or, as
it is disarmingly known, "POPI".

POPI has not received as much media attention as the Secrecy Act
albeit that the goals and objectives of POPI have arguably more
far-reaching consequences for the control and movement of
information about individuals.

Fundamentally, every person's right to privacy is protected
in section 14 of the Bill of Rights. It is a right that only
worries individuals when their privacy has, in one form or another,
been invaded, compromised or prejudiced. Therefore one of the
principles recognised by POPI is that every person has, "the
right to privacy [, which] includes a right to protection against
the unlawful collection, retention, dissemination and use of
personal information".

POPI states, in its preamble, that, "the State must
respect, protect, promote and fulfil the rights in the Bill of
Rights". Therefore, POPI is an important piece of legislation
in so far as it will, for the first time, control the manner in
which personal information is obtained, used, stored and
maintained.

Therefore understanding the provisions of POPI is an important
pre-requisite to understanding whether or not one's business
activities, in so far as concerns personal information, are
compliant with the overall constitutional directives that are
contained in the Bill of Rights and POPI.

POPI is now in its fifth working draft, which indicates the
intense legislative process through which it is currently moving.
There are a number of facets to POPI and not all of them can be
dealt with in an article of this nature. This article is therefore
designed to introduce the concept of how information is to be
handled once POPI becomes an Act.

The machinery that is to be used by POPI to drive its effects in
law is set out in Chapter 2, which concerns the application
provisions of POPI. Fundamentally, POPI applies to the processing
of personal information.

"Personal information" defined

The term "personal information" is defined with
reference to a number of categories of information (section 1 of
POPI). The definition of "personal information" is
designed to be as broad as possible to ensure that POPI has the
widest application.

This wide application of POPI is partly tempered, by exclusions
and exemptions that pertain to particular categories or types of
information.

Therefore, it is important to understand both the general
principles of POPI and the exemptions and exclusions. This
complicated interaction requires an understanding of:

the various categories of information, and

the purposes behind the movement of information between
individuals for certain purposes.

The overall legislative effect of POPI is concerned with the
so-called "processing" of information. Therefore, once
one comes to grips with what information is dealt with by POPI, one
must then understand what information may be processed and how this
processing is defined in POPI. This understanding is required in
order to assess the application of POPI to every day business
activities.

The definition of "processing" is currently under
debate as two proposed definitions have been presented.

"Record" is also a definition that requires closer
examination in order to understand how it applies to any particular
business activity.

"Record" is currently defined as and including
"any recorded information -

regardless of form or medium, including any of the
following:

writing on any material;

information produced, recorded or stored by means of any tape
recorder, computer equipment, whether hardware or software or both,
or other device, and any material subsequently derived from
information so produced, recorded or stored;

label, marking or other writing that identifies or describes
anything of which it forms part, or to which it is attached by any
means;

book, map, plan, graph or drawing;

photograph, film, negative, tape or other device in which one
or more visual images are embodied so as to be capable, with or
without the aid of some other equipment, of being reproduced;

in the possession or under the control of a responsible
party;

whether or not it was created by a responsible party; and

regardless of when it came into existence".

For the first time in the drafting history of POPI, there is
express recognition of the particular rights of so-called
"data subjects". A data subject is defined as the person
about whom personal information relates or a record is kept. These
rights form an important part of the machinery of POPI as they
establish the obligations that are imposed upon persons keeping
records or dealing with personal information.

The person who ultimately holds and maintains, or keeps, or
processes information is referred to in POPI as "the
responsible party". This term is defined as "a public or
private body or any other person which, alone or in conjunction
with others, determines the purpose of and means for processing
personal information". This is a very broad definition and
applies to any person holding personal information about data
subjects.

Interpretation and application

The application provisions of POPI rely on principles of
interpreting the words used in legislation. POPI, based on the
current draft, directs the reader to interpret it in a manner
that:

"(a) gives effect to the purposes of the Act set out in
section 2; and

(b) does not prevent any public or private body from exercising
or performing its powers, duties and functions in terms of the law
as far as such functions, powers and duties relate to the
processing of personal information and such processing is in
accordance with this Act or any other legislation, as referred to
in subsection (3), that regulates the processing of personal
information".

The current draft section 4 of POPI requires that the rights of
data subjects, be respected by persons holding or keeping personal
information or records, and must be read with the proposed section
5 concerning the general principles relating to the lawful
processing of personal information. Primarily, the processing of
personal information must adhere to eight principles that are set
out in proposed section 2.

The so-called "information principles" define the
rights and obligations of parties about whom personal information
or records relate, on the one hand, and those keeping such records
or personal information, on the other hand.

Proposed section 5 is easily split into two parts with the first
part dealing with the information principles and their application
and the second part dealing with exclusions applicable to when
those information principles will not apply.

In this regard, proposed section 6 deals with certain express
exclusions in relation to the processing of information to which
POPI will not apply. Once again, there are a number of drafting
options that have been included in the fifth working draft of POPI,
which indicate the nature of the current debate concerning the
application of POPI and its ultimate destiny as an Act of
Parliament.

Overall, POPI will not for example apply to personal information
that:

is non-commercial, and non-governmental or related to household
activities;

has been de-identified to the extent that it cannot be
re-identified again;

is held by or on behalf of a public body, which involves
national security or deals with the identification of the proceeds
of unlawful activities and the combating of money laundering
activities;

is created exclusively for journalistic purposes.

There is currently a debate concerning the exclusion of certain
information for so-called journalistic, literary and artistic
purposes. This remains a contentious area of POPI, which is part of
a drafting debate currently occurring in Parliament.

In addition to the express processing exclusions that POPI
contemplates, there are a number of exemptions that are
contemplated by POPI in relation to the processing of certain
"special personal information".

Bear in mind that the Information Regulator may also exempt,
once POPI becomes an Act, certain additional categories of
information from the application of POPI.

The current categories of special information and certain of the
related exemptions, which are not, as yet, final, are as
follows:

personal information concerning a child in circumstances where
that child is not legally competent to take any action or a
decision in respect of any matter concerning him or her;

the religious or philosophical beliefs, race or ethnic origin,
trade union membership, political opinions, health, DNA or sexual
life of a data subject;

the criminal behaviour of a data subject in so far as it
relates to the commission or alleged commission by a data subject
of any offence or the proceedings in respect of the offence
committed or allegedly committed.

Certain of the exemptions allowing the processing of personal
information, may include personal information for example,
information:

for historical, statistical, academic or scientific research
purposes, subject to certain limitations;

in the public interest and "appropriate guarantees have
been in put in place in law to protect the data subject's
privacy";

on a data subject's religious or philosophical beliefs
being processed by a spiritual or religious organisation or
independent sections of those organisations;

with respect to their members or employees that is processed by
institutions founded on religious or philosophical principles in
order to achieve their aims and principles;

processed by other institutions provided that the processing is
necessary to protect the spiritual welfare of the data subjects
concerned, unless they have indicated that they object to the
processing;

concerning a data subject's race, in so far as it is
necessary or essential to identify the race of the data subject and
it complies with laws to protect or advance persons or categories
of persons disadvantaged by unfair discrimination;

about a data subject's trade union membership, which is
processed by the trade union to which the data subject belongs or
the trade union federation to which that trade union belongs, if
the processing of that information is necessary to achieve the aims
of the union or the federation, as the case may be;

on a data subject's political persuasions:

processed by an institution founded on political principles and
the information is on its members or employees, or

if a data subject is intending to form a political party, or
participate in the activities of, or engage in the recruitment of
members for, or canvass supporters or voters for a political party
with a view to electioneering purposes;

the data subject's health which is being processed by
medical professionals, health care institutions or facilities or
social services for, "the proper treatment and care of the
data subject" or for the administration of the institution or
the professional practice concerned. (This includes insurance
companies, medical aid schemes, medical aid scheme administrators
and managed healthcare organisations in so far as it is necessary
to process that information for these companies or institutions to
fulfil their obligations in law);

health information being processed by schools, institutions of
probation, child protection or guardianship, the Minister of
Correctional Services, certain administrative bodies, pension
funds, employees or institutions working for them. This is in so
far as it is necessary to process that personal information for the
implementation of laws dealing with issues concerning pensions and
insurance agreements, or collective agreements, or the
reintegration of or support for workers, or pensions, or persons
entitled to benefits in connection with sickness or working in
capacity;

about a data subject's criminal behaviour, which may be
processed in relation to bodies charged by law with applying
criminal law or by responsible parties who have obtained that
information in accordance with the law and the provisions related
to the protection of legitimate interests in relation to the
prosecution of criminal offences in terms of the law.

Whilst POPI extends certain protection to personal information
and records, it also removes that protection by the application of
exemptions. Therefore, it is important to have a proper
understanding of both the protection afforded by POPI and the
exclusions applied to that protection, to appreciate whether or not
POPI applies to a particular type of information held by a
so-called "responsible party" within the course and scope
of its particular business.

Conclusion

Understanding the implications of POPI means understanding the
particulars of one's business: and in particular

the information that one holds;

the destinations to which that information is sent on a daily
basis;

the measures already in place to protect information held by an
organisation and whether such measures are sufficient to protect
that information as is and as will be required by law;

the nature of the protection that will be afforded to that
information by the law;

the type of consent that will be required from a data subject
to be able to process that information once POPI becomes law;
and

the rights that the responsible party has in relation to that
information once the information falls within the ambit of
POPI.

Certainly in so far as information is a valuable asset and
becomes more valuable as it is collected and merged with other
information, the impact on the value of a particular information
asset of regulatory control should not be under-estimated.
Therefore, the implications for such a valuable asset must be
carefully examined and understood prior to POPI becoming law.

In an age where information is powerful, the primary effect of
POPI will be that only those who manage to control information
lawfully will be in a position to use it powerfully.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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Companies can assess the amount of preparation needed to ready themselves for the implementation of the Protection of Personal Information Bill ("POPI") by considering the following minimum requirements:

This article provides an overview of data privacy in the UAE, explores the risks that companies face in relation to data loss by reference to case studies from the region and provides practical suggestions as to how businesses might seek to mitigate their exposure to risks of cyber crime.

Some comments from our readers…“The articles are extremely timely and highly applicable”“I often find critical information not available elsewhere”“As in-house counsel, Mondaq’s service is of great value”

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